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The Coalition Column

News Briefs, February 2008

Lee White, February 2008

Congress Enacts Freedom of Information Act Reform Bill

On December 31, 2007, President Bush signed into law legislation (S. 2488) to implement the first reforms to the Freedom of Information Act (FOIA) in more than a decade. Congress passed the "Openness Promotes Effectiveness in our National Government Act" (OPEN Government Act) bill on December 18, 2007.

The new law improves transparency in the federal government's FOIA process by:

Clarifying that FOIA applies to government records held by outside private contractors;

Establishing a FOIA hotline service for all federal agencies; and

Creating a FOIA ombudsman to provide FOIA requesters and federal agencies with a meaningful alternative to costly litigation.

In 2007, NCH issued a legislative alert urging passage of the FOIA bill and was involved in a broad-based coalition that worked towards passage of the legislation.

New Hold Placed on Presidential Records Reform Bill

As we have reported, since last September, Senator Jim Bunning (R-Ky.) has been blocking a vote in the Senate on the "Presidential Records Act Amendments of 2007" (H.R. 1255, S. 886). On December 18, 2007, without explanation, Senator Bunning finally lifted his hold. The next day, it was expected that Senate Majority Leader Harry Reid (D-Nev.) would bring the bill to the floor under the Senate's unanimous consent rule that allows noncontroversial legislation to be considered on an expedited basis. However, another unnamed Republican apparently placed a hold on the bill, preventing floor consideration.

Unfortunately it is unlikely supporters will be able to identify the person until the Senate reconvenes in late January. Since the White House has not rescinded its threat to veto the bill, it is reasonable to assume that whoever is holding up the bill in the Senate is doing so at the behest of the administration. While this is disappointing, we should take heart in the fact that the lobbying efforts of the broad-based coalition of groups supporting the bill has been able to force two Republican senators to lift their holds on the bill.

Passage of the bill (the House version of which—H.R. 1255—had been approved on March 14, 2007, by a vote of 333-93) is even more important given the recent ruling by a federal judge invalidating the section of Executive Order 13233 (issued by President George W. Bush in November 2001) that allowed former presidents to indefinitely delay the release of records. And the uncertainty over the impact of the federal lawsuit has once again generated controversy over former president Clinton's assertions that he is not blocking release of records from his presidential library.

The "Presidential Records Act Amendments of 2007" would nullify Executive Order 13233 and reestablish procedures to ensure the timely release of presidential records.

Public Interest Declassification Board Issues Initial Report

The Public Interest Declassification Board (PIDB) has released its first report to the president providing recommendations for improving the federal government's declassification system. The board examined 15 issues and made 49 separate recommendations to improve the current declassification system.

Among other issues, the board recommended a more comprehensive approach to declassification within the federal government to include the establishment of a National Declassification Center. It called for prioritizing the government's declassification efforts to ensure a greater focus on "historically significant" records, especially presidential records, with greater involvement of historians and historical advisory panels in setting these priorities.

The board brought particular attention to the challenges faced in dealing with records not normally made available to the public, such as the President's Daily Brief (an intelligence summary prepared each day for the president), as well as classified records created by committees of Congress, particularly classified reports and closed hearing transcripts.

Finally, the board noted that the current declassification system is ill equipped to deal with the challenges of tomorrow.

The Public Interest Declassification Board is an advisory committee established by Congress in order to promote the fullest possible public access to the documentary record of significant U.S. national security decisions and activities. Created in 2000 (Public Law 106-567), Congress appropriated funds for the board's operations in late 2005, allowing it to meet for the first time in February 2006.

The board is composed of nine individuals, five appointed by the president and four by the congressional leadership. The life of the board has been extended until 2012. Future plans include addressing other aspects of the classification and declassification process, such as the review of classified information contained in electronic records and monitoring the actions taken to address the issues identified in its first report.